Gupton v. Builders Transport, 671PA86

• Decision Date: 07 July 1987
• Docket Number: No. 671PA86,671PA86
• Citation: 357 S.E.2d 674,320 N.C. 38
• Court: North Carolina Supreme Court
• Parties: Ronald D. GUPTON, Employee, Plaintiff, v. BUILDERS TRANSPORT, Employer and Self-Insured, Carrier, Defendant.

Page 674

357 S.E.2d 674

320 N.C. 38

Ronald D. GUPTON, Employee, Plaintiff, v. BUILDERS TRANSPORT, Employer and Self-Insured, Carrier, Defendant.

No. 671PA86.

Supreme Court of North Carolina.

July 7, 1987.

Lore & McClearen by R. James Lore, Raleigh, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice by Richard T. Rice and Nancy R. Hatch, Winston-Salem, for defendant-appellee.

WHICHARD, Justice.

Plaintiff was employed by defendant-employer as a long-distance truck driver. He was accidentally injured on 11 September 1984 when an elastic strap broke and struck him in the eye. The accident did not affect plaintiff's visual acuity, but it resulted in a blind spot covering seven percent of the visual field of that eye. This defect prevented plaintiff from meeting minimum standards set by the Interstate Commerce Commission, and, because there were no alternative positions available with his employer, he was discharged. Subsequently plaintiff has been unable to find work at wages comparable to those he had been earning as a truck driver before the accident.

From the date of the accident until 11 January 1985, when plaintiff reached maximum medical improvement from the injury, he was paid all temporary total disability benefits to which he was entitled. Thereafter, the employer voluntarily sent a check for 8.4 weeks of compensation for the weeks from 12 January 1985 through 12 March 1985. On 14 February 1985 the employer notified plaintiff that it would pay no further compensation.

At the hearing on his claim plaintiff testified as to the wage differential between his current job and that he had had with defendant. Plaintiff introduced into evidence a memorandum from his employer's "Workers' Compensation Claims Manager" attaching copies of N.C.G.S. 97-29 and -30. The memorandum pointed out that the maximum compensation rate for plaintiff's injury was $262.00 and that under section 97-30 he would be entitled to 66 2/3 percent of the difference between his average weekly wage with Builders Transport and the average weekly wage on his new job. The memorandum concluded that the maximum benefit period is 300 weeks, less the number of weeks of temporary total disability and permanent partial disability already paid, and stressed that plaintiff could receive benefits up to 276.6 weeks. On the basis of the memorandum and a telephone conversation with the claims manager, plaintiff argued before the Deputy Commissioner that the doctrine of estoppel precluded his employer from refusing to pay benefits to which he was entitled under N.C.G.S. 97-30.

The Deputy Commissioner concluded that plaintiff's injury was compensable as a scheduled injury under N.C.G.S. 97-31(16), entitling him to an award of his average weekly wage for seven percent of 120 weeks, or 8.4 weeks. Plaintiff had already received this amount, and his claim for additional benefits was denied. In a comment to his findings the Deputy Commissioner specifically remarked that "it seems apparent in this case that compensation under [N.C.] G.S. 97-31(16) would operate to prohibit recovery under [N.C.]G.S. 97-30."

The full Commission adopted the opinion and award of the Deputy Commissioner. One Commissioner dissented, opining that the majority had erred in awarding the plaintiff compensation under N.C.G.S. 97-31; instead, it should have awarded compensation under N.C.G.S. 97-30 "because the evidence clearly and indisputably proves his partial incapacity to earn wages as a result of his injury."

The Court of Appeals affirmed the Commission's award, declining to exclude from the definition of "loss of vision," for which N.C.G.S. 97-31(19) provides compensation, partial loss of "field of vision." The opinion relied upon case law from that court in noting that "where all of the employee's injuries are compensable under G.S. 97-31, compensation is limited to an award under that section regardless of the employee's inability or diminished ability to earn wages." Gupton v. Builders Transport, 83 N.C.App. 1, 4, 348 S.E.2d 601, 602 (1986).

In holding that plaintiff was limited to the benefits to which he was entitled under N.C.G.S. 97-31, the Court of Appeals overlooked case law from this Court indicating that an award under N.C.G.S. 97-31 does not necessarily foreclose the award of additional benefits to which a claimant might be entitled.

In Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857 (1965), the plaintiff was initially awarded benefits for disfigurement under N.C.G.S. 97-31(21). At the time of his hearing the plaintiff, who had reached maximum medical improvement, had not yet attempted to return to work since the accident, so he presented no evidence of total or partial incapacity to work under N.C.G.S. 97-29 and -30. His claim for benefits under those provisions was consequently denied. A year later, however, the plaintiff moved to reopen his case on the basis of changed condition, offering into evidence the fact that he was earning $30 less per week than he had earned before the accident. The Commission denied the motion, essentially because the evidence had been erroneously termed "changed condition" rather than "newly discovered evidence." In remanding to the Commission for reconsideration of the evidence that the plaintiff had suffered a diminution in earning capacity, this Court noted that "[h]ad plaintiff presented this proof at the [first] hearing ..., the Commission would doubtlessly have found him entitled to an award under [N.C.]G.S. Sec. 97-30. The award which plaintiff received [as a result of that hearing] was for external facial or head disfigurement under [N.C.]G.S. Sec. 97-31(21)." Id. at 575, 139 S.E.2d at 861.

The critical feature of Hall, for purposes of this analysis, is that despite the fact that the plaintiff had already received an award under N.C.G.S. 97-31, this Court recognized that he might also be entitled to benefits under N.C.G.S. 97-30.

In Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986), this Court reached an analogous conclusion regarding N.C.G.S. 97-29, which governs compensation for total and permanent disability. The plaintiff in Whitley suffered injuries to his arm and hand. Because the injuries were sufficiently severe to preclude his returning to his old job and because he was illiterate and sixty years old, his "job potential [was] zero." Id. at 91, 348 S.E.2d at 337. Although the plaintiff's injuries were included in the schedule set out in N.C.G.S. 97-31, this Court concluded that

Section 29 is an alternate source of compensation for an employee who suffers an injury which is also included in the schedule. The injured worker is allowed to select the more favorable remedy, but he cannot recover compensation under both sections because section 31 is "in lieu of all other compensation."

Id. at 96, 348 S.E.2d at 340.

This Court reasoned that the 1943 amendment adding that section 31 "shall be in lieu of all other compensation" was adopted in response to the portion of the opinion in Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570 (1942), holding that nothing in the Workers' Compensation Act prohibited recovery for both the loss of a member and the disfigurement caused thereby. The opinion in Stanley provoked the amendment by noting that "[i]f the legislature intended to restrict compensation for disfigurement to those parts, members or organs of the body for which no compensation is provided in the schedules, we think it failed to express such intention in the statute." Id. at 262, 22 S.E.2d at 574. The Court concluded that an "in lieu of" clause was deliberately absent from section 31. Id. at 263, 22 S.E.2d at 574. The legislature responded by adding the restricting clause, but the Court in Whitley concluded that this amendment had no effect upon the possibility that an injury could be compensated by the provisions of more than one section of the Workers' Compensation Act. Whitley, 318 N.C. at 96-97, 348 S.E.2d at 340. When a single injury is covered by more than one section of the Act, the Commission may select a remedy. See, e.g., Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 578, 336 S.E.2d 47, 54 (1985); Fleming v. K-Mart Corp., 312 N.C. 538, 547, 324 S.E.2d 214, 219 (1985). So may the plaintiff when his injury is included in the schedule and he is also entitled to compensation under N.C.G.S. 97-29. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. at 96, 348 S.E.2d at 340.

The Court's analysis of N.C.G.S. 97-31 in Whitley honors the "fundamental rule that the Work[ers'] Compensation Act 'should be liberally construed to the end that the benefits thereof derived should not be denied upon [a] technical, narrow and strict interpretation.' " Hall v. Chevrolet Co., 263 N.C. at 576, 139 S.E.2d at 862, quoting Johnson v. Hosiery Co., 199 N.C. 38, 40, 153 S.E.2d 591, 593 (1930). Acknowledgment of this rule, of the precedent of Hall, and of this Court's interpretation of the "in lieu of all other compensation" language of N.C.G.S. 97-31 in Whitley, compels our conclusion that plaintiff here is entitled to either scheduled benefits under N.C.G.S. 97-31 or permanent partial disability benefits under N.C.G.S. 97-30.

Moreover, we note the symmetry of N.C.G.S. 97-29 and N.C.G.S. 97-30 which both provide compensation for loss of wages due to a "disability." "Disability" is defined in N.C.G.S. 97-2(9) as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." When an employee suffers a "diminution of the power or capacity to earn," Branham v. Panel Co., 223 N.C. 233, 237, 25 S.E.2d 865, 868 (1943), he or she is entitled to benefits under N.C.G.S. 97-30. When the power or capacity to earn is totally obliterated, he or she is entitled to benefits under N.C.G.S. 97-29. See, e.g., Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336; Fleming v. K-Mart Corp., 312 N.C. 538, 324...